COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68707 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION DELAIN TRIPLETT, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 26, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-313838 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Diane Smilanick Assistant County Prosecutor The Justice Center 1200 Ontario Street, 8th Floor Cleveland, Ohio 44113 For defendant-appellant: Henry J. Hilow McGINTY, GIBBONS & HILOW CO., L.P.A. 1375 East Ninth Street, No. 1920 Cleveland, Ohio 44114 -2- NAHRA, J.: Defendant-appellant Delain Triplett appeals from his conviction in case number CR-313838 for violation of R.C. 2907.05, Gross sexual imposition. The record reflects appellant was originally indicted in this case on two counts of gross sexual imposition; both counts contained violence specifications for a previous conviction for aggravated assault. The record further reflects appellant was also indicted in another case, viz., number CR-305704, on five counts of drug trafficking, R.C. 2925.03, and one count of possession of criminal tools, R.C. 2923.24. Count five of this indictment also contained three violence specifications for previous convictions. Appellant entered a plea of not guilty to each indictment and was assigned separate counsel for each case. On October 11, 1994, the trial court held a hearing on appellant's cases. At the outset, the prosecutor notified the court that "with an understanding that there will be a change in the defendant's plea," the State moved to amend both indictments. First, the prosecutor stated that in CR-305704, the State would nolle five of the six counts of the indictment, leaving only count five. The prosecutor proceeded to outline the possible sentences and fines involved if appellant pleaded guilty to the amended indictment in CR-305704. Then, with regard to the instant case, the prosecutor stated that if appellant withdrew his not guilty plea, the State would nolle one count of gross sexual imposition and would also delete -3- the violence specification. The prosecutor then outlined the possible penalties involved in this case viz., "a possible term of incarceration of six, 12, or 18 months, and a possible discretionary fine of up to but not exceeding $2,500." The prosecutor concluded by stating "there have been no threats or promises made to induce this plea." The trial court then invited both defense counsel to speak. Counsel in CR-305704 stated he had discussed the case with appellant "in great detail" and that appellant would be entering his plea "freely and voluntarily." Counsel in the instant case stated the plea bargain had been "accurately set forth," appellant would make a "knowing and voluntary waiver of his constitutional rights," and "[n]o promises or threats have been made for this change of plea." Following these statements, the trial court proceeded to address appellant directly. The trial court assured itself appellant was not under the influence of drugs or alcohol, outlined the amended charges against appellant in each case, and described the constitutional rights appellant was relinquishing by pleading guilty to those charges. Asked several times if he understood all this information, appellant responded each time in the affirmative. At the end of this colloquy, the following exchange occurred: THE COURT: Now, has anyone, including your attorneys, the prosecutor, or anyone here present, made you any promises, threatened you in any way, or offered you any kind of inducements or incentives to cause you to enter into these pleas today? MR. TRIPLETT: No, sir. -4- THE COURT: Do you understand that upon acceptance of your plea the Court could proceed with judgment and sentence if it so desires? MR. TRIPLETT: Yes, sir. THE COURT: In case number 305704, count five is a felony in the third degree. As such, it's punishable by a possible term of imprisonment of either two, two and a half, three, four, up to ten years. In addition to that -- or, I should say as part of that, 18 months must be actual. In other words, you have to go to prison; it's not a probationable offense. Do you understand that? MR. TRIPLETT: Yes, sir. THE COURT: In addition, there's a $5,000 mandatory and discretionary fine. Do you understand that? MR. TRIPLETT: Yes. THE COURT: As a condition of your plea, you're going to be giving up or forfeiting any right, title or interest in all the contraband that was confiscated from you, consisting of coke, marijuana, a hundred dollars cash, and various pieces of communications hardware. Do you understand that? MR. TRIPLETT: Yes, sir. THE COURT: In case number 313838, count one, as amended, is a felony in the fourth degree. As such, it's punishable by a possible term of incarceration of either six, 12, or 18 months and/or a possible fine of up to $2,500. Do you understand that? MR. TRIPLETT: Yes, sir. (Emphasis added.) Thereafter, appellant entered a plea of guilty to the amended indictment in CR-305704, which the trial court accepted. The trial court then proceeded to the instant case; appellant stated his plea to one count of gross sexual imposition, as indicted, was "guilty." -5- When asked if the plea was "freely and voluntarily given," appellant responded, "Yes." Thereupon, the trial court granted the State's motions to nolle the remaining counts in both cases. The trial court then again addressed appellant as follows: THE COURT: * * * If I didn't do it before, I accept the plea and find you guilty to the counts as pled. This matter will be referred to the probation department for the preparation of a pre-sentence report. I've indicated to your attorneys that, based on what I know about this case, I'm leaning toward the low end. Should you fail to appear at your sentencing or should you fail to cooperate with the probation department, I reserve any and all right I have to max you out (sic). MR. TRIPLETT: I understand THE COURT: You'll be cut a break here. With that, we'll see you in between four to six weeks. When the pre-sentence report is prepared, my bailiff will contact your attorneys and we'll set up a date for your sentencing. Please stay in touch with your attorneys. (Emphasis added.) The record reflects that the trial court issued a capias when appellant "failed to appear for sentencing" on December 30, 1994. On January 25, 1995, the trial court sentenced appellant on both cases. In the instant case, appellant was sentenced to a one- and-a-half year term of incarceration to be served concurrently with the term imposed in CR-305704. This court subsequently granted appellant's motion for a delayed appeal. Appellant presents the following as his sole assignment of error: -6- THE TRIAL COURT ERRED IN ACCEPTING TRIPLETT'S PLEA AS CRIMINAL RULE 11(C) CANNOT BE SUBSTANTIALLY COMPLIED WITH WHEN THE APPELLANT'S PLEA WAS NOT KNOWINGLY AND INTELLIGENTLY MADE. Appellant argues that the record indicates he was "induced" to make his plea with the understanding that he would receive a "lighter" sentence. He contends that pursuant to Crim.R. 11(C), the trial court's failure to "ascertain" this understanding renders his plea involuntary. The record, however, does not support appellant's argument. Crim.R. 11 was adopted in order to safeguard a defendant's constitutional rights and state in pertinent part as follows: (C) Pleas of Guilty and no Contest in Felony Cases * * * (2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and: (a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation. (b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence. (c) Informing him and determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself. * * * -7- (F) Negotiated Plea in felony cases. When, in felony cases, a negotiated plea of guilty or no contest to one or more offenses charged or to one or more other or lesser offenses is offered, the underlying agreement upon which the plea is based shall be stated on the record in open court. See, e.g., Boykin v. Alabama (1969), 395 U.S. 238; State v. Johnson (1988), 40 Ohio St.3d 130, 132-133. The Ohio Supreme Court has held a trial court's colloquy with a defendant pursuant to Crim.R. 11(C) must demonstrate substantial compliance with the requirements of the rule. State v. Nero (1990), 56 Ohio St.3d 106. Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving. Stewart, supra; State v. Carter (1979), 60 Ohio St. 2d 34, 38, 14 O.O. 3d 199, 201, 396 N.E.2d 757, 760, certiorari denied (1980), 445 U.S. 963. Furthermore, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. Stewart, supra, at 93, 5 O.O.3d at 56, 364 N.E.2d at 1167; Crim.R. 52(A). The test is whether the plea would have otherwise been made. Id. Id., at 108. (Emphasis added.) Furthermore, it has been held that in order to portray a claimed error of failure to comply with Crim.R. 11(F), it must affirmatively appear in the record that such an "underlying agreement" existed. State v. Butler (1974), 44 Ohio App.2d 177; State v. Thrower (1989), 62 Ohio App.3d 359 at 376; State v. Isreal (1993), 68 Ohio App.3d 696 at 700. In this case, it is clear both that appellant subjectively understood the implications of his plea and that the whole -8- agreement upon which the plea was based was set forth for the record. Although appellant attempts to lend credence to his argument by asserting the trial court's comment that he would be "cut a break here" evidences an "inducement" that he would receive a lighter sentence, his assertion is based only upon a reading of the comment out of context. As the transcript of his plea hearing reveals, appellant's plea arrangement was set forth on the record in its entirety, and appellant was well aware of its terms. Moreover, the prosecutor and appellant's counsel affirmatively stated, and appellant agreed, that no other promises had been made. Clearly, the trial court made its powers and prerogatives clear to appellant prior to the entry of the plea. The record demonstrates appellant simply chose to test the trial court's disposition: he failed to appear for the originally scheduled sentencing despite the trial court's explicit warning on this matter. See, e.g., State v. Darmour (1987), 38 Ohio App.3d 160. Moreover, when the trial court finally imposed sentence upon appellant in this case, it had the benefit of the probation report. Since the record demonstrates full compliance with Crim.R. 11, appellant has failed to establish his guilty plea was not knowingly, intelligently, and voluntarily made. Rather, a review of the record in this case reveals "under the totality of the circumstances" appellant clearly understood "the implications of his plea;" furthermore, since appellant made his plea in order to -9- obtain a dismissal of other significant and serious charges against him, he cannot demonstrate a "prejudicial effect." State v. Johnson, supra. Therefore, the trial court did not err in accepting appellant's guilty plea. Accordingly, appellant's sole assignment of error is overruled. Affirmed. -10- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PORTER, P.J., and McMONAGLE, TIMOTHY E., J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .